Tiger v. State
| Decision Date | 09 December 1932 |
| Docket Number | A-8417. |
| Citation | 16 P.2d 889,54 Okla.Crim. 202 |
| Parties | TIGER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
A variance in a criminal case is an essential difference between the accusation and the proof, and a variance is not material unless it is such as might mislead the defense, or expose the defendant to the injury of being put twice in jeopardy for the same offense.
Appeal from District Court, McIntosh County; Harve L. Melton, Judge.
Miller Tiger was convicted of manslaughter in the first degree, and he appeals.
Affirmed.
Clark & Jack Nichols, of Eufaula, for plaintiff in error.
J Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty Gen., for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the district court of McIntosh county of manslaughter in the first degree, and was sentenced to serve a term of 10 years in the state penitentiary.
At the time charged, defendant and John Kelly, the deceased full-blood Creek Indians, were at the home of defendant, both intoxicated and engaged in a fight. It is admitted defendant struck Kelly with his hands and feet and that Kelly's death was caused by two fractures in the back part of the skull. His face and other parts of the body also were bruised. The information in substance charges that defendant assaulted Kelly with a certain heavy, dangerous, blunt instrument, the kind and nature being unknown to the county attorney. No weapon was found at the scene of the homicide defendant was wearing shoes with rubber heels.
The only contention made is that the testimony does not sustain the charge; that, while there is testimony that defendant struck Kelly with his fists and knocked him down against the stove and that some time in the fight kicked him, there is no proof of the allegation of an assault with a heavy dangerous, blunt instrument. Defendant relies for a reversal on the case of Elliott v. State, 4 Okl. Cr. 224, 111 P. 820, 140 Am. St. Rep. 683. It is not contested that Kelly met his death in a fight with defendant; that death was caused either by defendant striking deceased with his fist, causing him to fall and sustain the wounds from which he died, or by kicking him and causing the wounds, or by striking him with some weapon not disclosed. As to the cause of death, the physician who performed the autopsy testified deceased had been struck with some blunt...
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Rhodes v. State
...114 P. 603, Ann. Cas. 1912C, 424; Oats v. State, 153 Ind. 436, 55 N.E. 226; 8 Words and Phrases, First Series, 7283. In Tiger v. State, 54 Okl. Cr. 202, 16 P.2d 889, 890, it said: "This court has followed the later sensible rule as stated in Woods v. State, 22 Okl. Cr. 365, 211 P. 519, and ......
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Hodges v. State
...of this case. While we think there is a clear distinction between this case and the case at bar, this court in the case of Tiger v. State, 54 Okl.Cr. 202, 16 P.2d 889, occasion to refer to the Elliott Case, and while the same was not overruled the doctrine as announced therein was not follo......
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Snider v. State
... ... material unless it is such as might mislead the defense, or ... expose the defendant to the injury of being put twice in ... jeopardy for the same offense. Woods v. State, 22 ... Okl.Cr. 365, 211 P. 519; Brashears v. State, 38 ... Okl.Cr. 175, 259 P. 665; Tiger v. State, 54 Okl.Cr ... 202, 16 P.2d 889; Garner v. State, 51 Okl.Cr. 368, 1 ... P.2d 787; Wells v. Territory, 1 Okl.Cr. 469, 98 P ... This ... contention of the defendant is highly technical; and in the ... face of the proof which so conclusively establishes his ... ...
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Sweden v. State
... ... which was clearly set forth in the preliminary complaint ... It has ... been held that a variance is not material unless it misleads ... the accused in preparing his defense or exposes him to double ... jeopardy. Tiger v. State, 54 Okl.Cr. 202, 16 P.2d ... 889; Herren v. State, 72 Okl.Cr. 254, 115 P.2d 258 ... This ... court does not approve of the handling of criminal cases in ... the manner in which this case was presented. However, the ... fault lay as much in the hands of counsel for ... ...